¶1Dissenting Opinion.
¶2The first bill of exceptions recites, in substance, that when the District Attorney was proceeding to offer in evidence the dying declaration of the person hilled, counsel for defendant objected, on the ground that the said declaration had not been made under a sense of impending dissolution ; that, thereupon, the District Attorney was proceeding to call witnesses to prove the facts necessary to serve as a basis for admitting the declaration, when counsel for defendant moved the court to ojien a note of evidence, and to reduce the testimony on this jioint to writing, so that the ruling of the court upon the question of admissibility, being a question of blended law and fact, might be reviewed by the Sujireme Court on ajijieal; but the judge refused to open a note of evidence or to have the testimony taken in writing, and proceeded to hear the evidence and, after hearing it, admitted the declaration, to which rulings the defendant objected and took this bill of excejitions.
¶3The judge assigns as his reasons that “ the. court is not aware of any law requiring the evidence to be taken down in writing in such cases, and refused the request, for the reason that it was a useless consumption of time, and because the counsel for defendant had amjile ojijiortunity to incorjiorate the facts in a bill of exceptions, which they have not seen fit to do, although they took the jirecantiou to state the facts in writing in the excejition book, on which they rely.”
¶4The judge then jiroceeds to state the evidence and his conclusion that, at the time of making the declaration, it established that the declarant was under the sense of impending dissolution.
¶5The judge correctly states that there is no law requiring such evidence to be taken down in writing. The statute book will be searched in vain for any such law.
¶6This Court, long ago, after stating the notorious fact that “testimony is never taken down by the clerk in criminal eases,” adds that “ the Articles of the Code of Practice, which give to either jiarty the right to require the clerk to take down the testimony in civil cases, are not ajiplicable to ajipeals in criminal cases.” State vs. Henderson, 13 Ann. 491; State vs. Beneger, 14 Ann. 465.
¶7*153There is no other statute expressly or impliedly giving sueli right.
¶8If this evidence had been reduced to .writing and were properly brought up before us, we would have no right to reverse the findings of the judge, as to its weight or sufficiency. The constitution limits our jurisdiction in criminal cases to “ question of law alone.” Act 81.
¶9Prior to the Constitution of 1845, there was no constitutional jirovision regulating appeals in criminal cases. Under the legislative provisions on that subject, the court of criminal appeals had assumed jurisdiction to pass on questions of fact when blended with questions of law. To put an end to this practice, the Constitution of 1845 expressly and emphatically restricted the appellate jurisdiction to “ questions of law alone.”
¶10Underfills provision this Court, as organized under that constitution, uniformly held that questions of fact arising in the course of a trial before the jury in a criminal case, whether addressed to the jury or to the judge alone, are not reviewable in this Court. We are to take the facts as found by the judge and can only inquire whether he has applied the law correctly to those facts. We have no jurisdiction over questions of fact, and, therefore, no power to review the findings of judge or jury on such questions.
¶11This doctrine has been applied to the very question now before us, in a case where a dying declaration was objected to on the ground that it was not made under a sense of impending dissolution, and this Court said : “ The physical and mental condition of Jordan, at the time of the declaration is a question of fact over which tliis Court has no jurisdiction.” State vs. Bennett, 14 Ann. 652.
¶12So in a ease where the question of sanity of the prisoner was involved, the Court said: “The affidavits present a mere question as to the sanity of a prisoner which is a mere question of fact and not of law, and wo cannot assume jurisdiction over it.” State vs. Haase, 14 Ann. 79.
¶13In another case the Court said: “ By the well known rule of criminal proceedings, the evidence introduced on the trial is not reduced to writing, and if it was, we would be without authority to pronounce upon it.” State vs. Frank, 2 Ann. 837; State vs. Crawford, 32 Ann. 527.
¶14Mr. Wharton lays down the rule applicable to the question now before us as follows: “The Court is to decide as to the admissibility of the declaration. The truth of the facts, put in evidence to show that declarations were made in view of speedy death, is matter for the Court, audits decision on the facts it finds proven, is matter of law and may be reviewed.” 1 Whart. Cr. Pr. § 688, citing many authorities.
¶15The doctrine is well puit by the Supreme Court of North Carolina, as follows ; “ The ease on appeal, as settled, l>g the trial pudge, must be ao *154cepted by this Court as imparting absolute verity for all purposes of correcting errors assigned.” State vs. Debham, 3 S. E. Rep. 742.
¶16Our own Court lias held as follows: “ Where prior confessions are inadmissible because unduly obtained, the district judges have the power, it seems, to infer that the improper influence has ceased to operate from lapse of time or other cause. And their action on such a point cannot be reviewed, unless the bill disclosed some errors of law.” State vs. Hash, 12 Ann. 894.
¶17The futility of bringing before us the evidence in such cases is illustrated by the constant recognition of the right of the judge to believe or disbelieve it, which was ruled as late as in Ford’s case, where we said in reference to a question of the admissibility of evidence of threats: “ In passing on such a question, the trial judge must necessarily be clothed with authority to decide whether a proper foundation has been laid for the proffered evidence, and that authority necessarily includes the discretion to ignore and not to consider testimony which his reason refuses to believe.” State vs. Ford, 37 Ann. 461; State vs. Hunt, 4 Ann. 438; State vs. Long, ib. 441.
¶18It may be stated as beyond contradiction that under previous Constitutions confining the jurisdiction of this Court in criminal cases to “ questions of law alone,” the jurisprudence of this Court, conforming to that of every other court of like jurisdiction, had been constant and without variation that questions of fact, however arising, were outside its appellate jurisdiction, and that it could only review decisions on blended questions of law and fact, by accepting the facts as found by the judge and determining whether his application of law to those facts was or was not correctly made. 4 Ann. 505; 6 Ann. 331, 593, 651; 7 Ann. 47, 322, 531 ; 8 Ann. 114; 10 Ann. 401; 11 Ann. 81, 422, 479; 14 Ann. 79, 673, 785; 20 Ann. 236 ; 22 Ann. 9; 23 Ann. 149; 26 Ann. 333; 30 Ann. 365.
¶19The eases and authorities quoted in the majority opinion as indicating a contrary view, when critically examined, will be found to confirm, and not to contradict, this uniform course of ruling.
¶20When under this inveterate jurisprudence, the Constitution of 1879 embodied the same restriction on the appellate jurisdiction of this Court, it may have been fairly presumed that a similar interpretation thereof would be made. Nevertheless in Nelson’s case, 32 Ann. 842, this Court guardedly held: “This Court has authority to consider the facts established on a motion for new trial, when tlu-.y are such as were not submitted to and passed on by the jury, but were considered and decided by the judge only. * The difficully of a disagreement- be*155tween tlie judge and counsel as to tlie facts proved may well be obviated by requiring tlie testimony to be reduced to writing and annexed to a bill of exceptions as a component part thereof, it being the clear duty of the judge in cases of motions for a new trial, involving facts not submitted to a jury, to have such testimony put on record at the instance of either party, as the same is to-be weighed, first, by the judge a quo, and next, by the appellate tribunal.”
¶21Although the decision contained some broader elida, this was the only question before the court.
¶22If confined to rules for new trial and to like proceedings entirely outside and independent of tlie trial before the jury, the decision, although contrary to all former precedents of our own and other courts vested with appellate jurisdiction on “ questions of law,” may operate without substantial injury.
¶23But when it is proposed to extend the same doctrine to proceedings arising in the course of the trial before the jury and to review the findings of the judge on questions of fact the determination of which is necessarily confided to his discretion as a basis for his rulings on the admissibility of testiihony, it is time to call a halt.
¶24The facts upon which such rulings are made are often facts which have already gone to the jury in the course of trial. They are, still more often, facts which are proper for the jury.
¶25In this very case, it does not appear that the evidence sought to be reviewed was not given before the jury; for, while the facts and circumstances surrounding a dying declaration are within the exclusive cognizance of the judge as far as the question of the admissibility of the declaration is concerned, they go -properly to the jury also as matters affecting the weight and value of the declaration. So says Mr. Green-leaf: “ The circumstances under which tlie declarations were made are to bo shown to tlie judge; it being his province, and not that of the jury, to determine whether they are admissible … But after the evidence is admitted, its credibility is entirely with tlie jury, who of course are'at liberty to weigh all the circumstances under which the declarations were made, including those already proved to the jueleje, and to give the testimony only such credit as, upon the whole, they may think it deserves. 1 Greenleaf Ev., Sec. 160. 2 Starkie Ev., p. 263.
¶26If we may review decisions upon questions of fact of this kind, the restriction of the Constitution confining our jurisdiction to “ questions of law alone,” is rendered in large measure inoperative. There is no precedent for such a practice unless the case'of Trivas, 32 Ann. 1056, be so considered; but there we simply overruled an exception to the re*156fnsal of tlie judge to liave the (melonce taken down in writing because we said “he had caused to be written that part of the testimony which was intended as a basis for the introduction of the testimony.” This involved no necessary recognition of the right claimed, hut only said to the claimant, you have no cause of complaint, because tlie right claimed was accorded to you.
¶27I apprehend that the present ruling will introduce great difficulty and confusion in the administration of criminal justice, owing to the variety and multitude of questions of this kind arising in the course of criminal trials. Often the decision of the judge as to the foundation having been laid for proffered evidence must ho based on evidence previously taken in the course of trial. Iiow is his appreciation of such evidence to he reviewed by us and the correctness of his ruling to he determined ? Can he he required to recall the witnesses and have their testimony taken over again and reduced to writing ! Or, inasmuch as no one can foretell what particular evidence, taken on the trial may fall under the consideration of the judge as a basis for his future rulings, would it not he the logical outcome to require all testimony to he taken in writing as it is given “? By this means alone could we securely provide for subjecting all his rulings to review, if we are to review his decisions on questions of fact as well as law i
¶28I dissent.